Category Archives: Mark L. Movsesian

On the Influence of the Scribes

At the Liberty Law site, my friend John McGinnis has a very interesting post on what he calls America’s “scribal class.” These are people – professors, journalists, opinion writers, lawyers, even entertainment industry types – who set America’s cultural and political agendas. John writes that they have enormous power, and all skew one way: Left.

John extrapolates from a recent study on the liberalism of American lawyers:

Academics in the humanities and social sciences set a long-term agenda for the country by educating the young and by shaping the categories of thought. The news media shapes the shorter-term political agenda by deciding what to emphasize in its coverage and how to spin it. Lawyers, whom Tocqueville almost two centuries ago understood as the aristocrats of the United States, are experts at using the courts and the burgeoning administrative state to shift social policy. And the study leaves out the entertainment industry and government bureaucrats, groups that are also on the left.  Entertainers help set social agendas, and bureaucrats often help advance the programs of liberal politicians and obstruct those of conservatives.

Thus, the left owns the commanding heights of our democracy. Given this power, it is a surprise that the right wins as many elections as it does. To be sure, modern information technology has created a more dispersed media world and permitted conservatives a somewhat greater voice. But the imbalances remain dramatic.

John goes on to contrast the scribal class with “producers,” those people who “produce material goods and non-information services for a living.” Producers, he suggests, do not skew Left, or at least not as much as the scribal class. They serve as a kind of cultural counterweight, to the great annoyance of the scribes.

John is right in his assessment of the cultural and political leanings of the scribal class, and the outsize influence members of that class have over the direction of the country. He’s not as persuasive when it comes to the producers. Corporate America and the cultural Left often find themselves on the same side of public debates, as last spring’s controversy over the Indiana RFRA law, and last summer’s reaction to Obergefell decision, demonstrate. Corporate America really doesn’t stand in opposition to the Left, unless one defines the Left purely in economic terms.

John minimizes one factor, though, and that is the scribal class’s almost total disregard of religion, at least traditional religion. True, the media sometimes presents religious minorities in a flattering light, usually as examples of a benign multiculturalism. But there is little respect for the legitimacy of religious convictions as such, especially the convictions of traditional believers. There is little knowledge even of basic facts.

Witness, for example, yesterday’s reaction to Pope Francis’s statement on forgiving women who show contrition for having had abortions. The media has trumpeted the pope’s statement as a major, surprising departure from Catholic teaching, rather than a temporary relaxing of formal rules on who may grant absolution – as though the concept of forgiving sins was somehow alien to Christian doctrine. Pope John Paul II had relaxed the rules in the last Holy Year, in 2000, a fact most media failed to report.

To me, all this suggests two things, neither of which, I guess, is particularly new. First, religious conservatives must do a better job making inroads in the scribal class, or develop an alternative vehicle for expression, if they are not to be steamrolled entirely out of the public conversation. Second, conservatives should focus less on politics itself and more on the culture that drives politics – on hearts and minds, not election returns.

You can read John’s whole piece here.

International Law and Religion Moot Court: Venice 2016

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The Fondazione Marcianum in Venice

The Fondazione Marcianum, a research center in Venice, will hold its second annual international law-and-religion moot court competition this coming March. The competition, which gathers law students from universities around the world, is the only one of its kind: a truly international competition in which students argue a case before panels simulating both the US Supreme Court and the European Court of Human Rights. Full disclosure: I took part as a judge in last year’s competition and found it extremely worthwhile. This year, I’ve helped craft the problem and will deliver one of the keynote addresses.

This year’s problem relates to the establishment of religion — to school prayer, specifically. You can download the problem here. I greatly encourage law students to consider competing. It’s a truly unique educational experience. Any questions, please contact the Fondazione here.

Ever Hear of This Guy?

A book out this summer, on Renaissance banker Jacob Fugger, is getting lots of the-richest-man-who-ever-lived-9781451688559_lgattention. The Richest Man Who Ever Lived claims that Fugger, of whom pretty much no one has ever heard, was one of the most influential people in his age — and all of history, in fact. According to the author, journalist and securities analyst Greg Steinmetz, Fugger is indirectly responsible both for the end of the Catholic Church’s ban on the taking of interest and, in a roundabout way, the Protestant Reformation. From the Washington Post‘s review:

Fugger’s “greatest talent was an ability to borrow the money he needed to invest,” Steinmetz writes. “He convinced cardinals, bishops, dukes, and counts to loan him oceans of money. . . . Financial leverage catapulted him to the top.” But in order to charge and offer interest payments, he had to battle the church’s long-standing ban on usury. Here Fugger’s links to Rome, buttressed through bribes for high church officials, became useful. Through artful lobbying and the staging of a high-profile public debate, he helped persuade Pope Leo X to sign a papal bull acknowledging the legitimacy of interest, which became permissible as long as the loan involved labor, cost or risk on behalf of the lender. “And what loan didn’t involve one of the three?” Steinmetz asks. After this victory, “debt financing accelerated,” he writes. “The modern economy was underway.”

It was a system that soon prompted controversies and suffered attacks, whether peasant revolts or even the Protestant Reformation. Clerical offices were for sale then, and Fugger financed the purchase of an influential job — the archbishop of Mainz, one of the seven electors of the Holy Roman Emperor. In order to repay the loan, the new bishop and the pontiff concocted a scheme: the sale of sin-forgiving indulgences to the faithful, ostensibly to refurbish St. Peter’s Basilica but in large part to repay Fugger. A 33-year-old priest and theologian by the name of Martin Luther was outraged at the church cashing in on popular fears of damnation and posted his 95 Theses on the door of All Saints’ Church in Wittenberg. You know what happened next.

I’m always suspicious of claims that an author has discovered a previously unknown person who changed the course of history. But who knows? Anyway, the book looks interesting, and it’s nice to see the history of law and religion getting some attention in the  media.

In Defense of Christians to Hold National Convention Next Month

In Defense of Christians, a non-profit organization that publicizes the plight of Mideast Christians and seeks assistance for them, will hold its National Leadership Convention in Washington, DC next month. The meeting will include roundtables and open discussions with religious and political leaders; policy briefings with congressional leaders; panels on international religious freedom; and an ecumenical discussion on bridging gaps between Eastern and Western Christians–all with the aim of raising awareness about the human rights of Mideast Christians. Details are here.

 

The Superman Would Laugh at Exams

As we prepare to start a new academic year, the Wall Street Journal‘s Law Blog offers a rundown of some new courses at American law schools:

• At Pepperdine Law School in California, students will search for answers to contemporary problems in the Bible. “Law and the Bible” will explore “how the Bible addresses the challenging legal issues of our day—the breakdown of the family, the death penalty, abortion, poverty, climate change, gay marriage, human trafficking, immigration, and the separation of church and state.”

• At Harvard, students will be seeking advice from Friedrich Nietzsche.“The premise is that provocation by this Master Provocateur may be just the therapy that law students need,” says the description of “Nietzsche for Lawyers,” taught by criminal law professor Richard Parker. There’s no exam, but “soft drinks, wine and snacks will be provided.”

Further comment seems unnecessary.

Krauthammer on Rescuing Syrian Christians

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Syriac Orthodox Christians in Damascus (Russia Today)

A nice piece by Charles Krauthammer in the Washington Post, on the efforts of Lord George Weidenfeld, a British Jew, to save some Syrian Christians. Weidenfeld was himself rescued by Christians in 1938. A British Protestant group brought him to London from Vienna, thus saving him from the Holocaust. Now, he says, he wishes to repay the favor. It’s a small effort, only 2000 families, but it’s something.

Notably, the US Government has declined to participate in Weidenfeld’s efforts, as they target Christians, as opposed to other religious minorities suffering in Syria. No doubt, this reticence comes from the by now well-known American policy of avoiding the appearance of sectarianism in the Mideast. Maybe some people in the Administration even think there would be some sort of Establishment Clause problem with helping Weidenfeld.

Both these concerns are silly. If the US Government were assisting only Christians in the Mideast, that could be a PR problem–for the US and for the local Christians. But the US is helping many religious minorities. Just last summer, it evacuated besieged Yazidis on Mt. Sinjar. So helping Weidenfeld’s group couldn’t be considered favoritism. Anyway, no matter what the US does, it will be seen in the region as a “Christian” power, however ironic that might seem to us here.

As for the Establishment Clause, I don’t know where to begin. Even if the Clause were to apply to such matters, the fact that the US Government distributes foreign assistance to all sorts of religious minorities in the Mideast, not just Christians, would surely satisfy any reasonable neutrality requirement, even the so-called endorsement test. The endorsement test asks whether government action makes non-adherents feel like political outsiders, second-class citizens. Would non-Christians in America really feel like outsiders because some small portion of US aid goes to help a charity rescuing a couple thousand Christian families from war-torn Syria?

The NYT on the End of Mideast Christianity

Egyptian Copts, one holding a Coptic Christian cross, demonstrate against the overnight sectarian violence, in downtown Cairo, Egypt Sunday, May 8, 2011. Christians and Muslims throwing rocks clashed in downtown Cairo on Sunday, hours after ultraconservative Muslim mobs set fire overnight to a church and a Christian-owned apartment building in a frenzy of violence that killed 12 people and injured more than 200. (AP Photo/Khalil Hamra)

 Photo from Christianity Today

Eliza Griswold’s major piece on Mideast Christians in the New York Times Magazine this past weekend is getting lots of well-deserved attention. The Times, more than almost any other media publication, can place items on the national agenda, and both it and Griswold deserve credit for covering the crisis facing Christianity in Syria and Iraq. Griswold makes a couple of mistakes in the article–she incorrectly describes the beliefs of Oriental Orthodox Christians and ascribes the Armenian Genocide to “nationalism, not religion,” when in fact the genocide resulted from both–but, on the whole, it’s a very impressive piece, and well worth reading.

As an American, I was particularly struck by Griswold’s description of how the United States has abandoned Mideast Christians. Really, we are doing next to nothing to help these poor people. “Wait a minute,” someone might object. “How has the US abandoned them? And why do we have to do anything? We’re not responsible for righting every wrong that occurs in the world, and anyway we were in Iraq, trying to help, for years. It didn’t work. Let Iraqis and other local populations settle this for themselves. It’s not worth more American lives.”

I understand the appeal of this objection, but it depends on not a little willful amnesia. Of course, the parties who bear principal responsibility for the persecution of Christians are local Islamists like ISIS. But the US itself bears indirect responsibility. The US invasion in 2003 led to this situation, by creating anarchy and unleashing long-repressed sectarian resentments. And by abruptly leaving Iraq, we have allowed the crisis to intensify. A Catholic bishop Griswold quotes says it well. “Americans and the West were telling us they came to bring democracy, freedom and prosperity. What we are living is anarchy, war, death and the plight of three million refugees.’’ Having helped to create this crisis, the US has a moral obligation to do something to help. We can’t simply abandon these people–and Griswold makes clear that both the Bush and Obama Administrations deserve blame in this–as though we had nothing to do with exposing them to danger in the first place.

As of now, Griswold reports, the US has done very little. (This morning’s announcement of a potential US-Turkish alliance to fight ISIS in northern Syria seems driven largely by Turkey’s desire to preempt Kurdish gains; I doubt most of the region’s Christians hope for much out of it). The US is doing nothing to speed up immigration applications from Mideast Christians, notwithstanding the obvious persecution they are suffering. Even humanitarian assistance has been lacking.

Griswold correctly diagnoses the problem. Mideast Christians have few allies in American politics. Conservatives don’t feel much affinity for Mideast Christians, who often favor Palestine in the Israeli-Palestinian conflict, and liberals have a hard time seeing any Christians as sympathetic victims. As someone once observed, Mideast Christians have the misfortune to be too foreign for the Right and too Christian for the Left.

I hope Griswold’s timely piece can do something to help change America’s response. You can read her whole essay here.

Same-Sex Marriage and Our New Religious Politics

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Photo from Wikimedia

In the last week, two interesting polls have appeared, one from the Associated Press and the other from the Washington Post, on Americans’ reactions to the Supreme Court’s June ruling in the same-sex marriage case, Obergefell v. Hodges. Taken together, the polls reveal that America is more divided on the question than first appeared. And the polls reflect an unfortunate, new religious dimension in American politics.

Notwithstanding the widespread acclaim for the decision in the days following Obergefell, it turns out that many Americans do not favor making same-sex marriage a constitutional right. In the AP poll, only 39% said they approved of the Court’s ruling, while 41% said they disapproved. In the Washington Post poll, a bare majority, 52%, said they approved the Court’s decision, while 44% disapproved. These results are much closer than one would have expected, given the immediate media reaction to the ruling.

Now, the fact that many Americans disapprove of the Court’s decision doesn’t mean the decision is wrong. Constitutional law doesn’t turn on opinion polls. (As it happens, I think the Court’s opinion is wrong as a constitutional matter, for reasons I explain here). And one must be careful about reading too much into polls, especially polls that follow an unusual recent event. In time, public opinion may settle in favor of the Court’s decision, especially given the fact that younger Americans apparently support same-sex marriage in significant numbers. Besides, people could disapprove of the Court’s decision for reasons that do not directly relate to the merits. Americans are generally in a bad mood about the state of our country these days, and the polls may simply reflect that dissatisfaction.

All that said, these polls seem significant to me, for three reasons. First, they demonstrate that opposition to the Court’s decision is not a fringe phenomenon. Forty-four percent of the country is not an insignificant group. Dissenters may be reticent about expressing their opinion publicly—or, indeed, to pollsters, which suggests the percentage of opponents may be even higher—but they are not a trivial proportion of the population. America is apparently still divided on the question of same-sex marriage, and this division will doubtless make itself apparent in our politics. More on this below.

Second, the results hint that some people who oppose the Court’s decision may do so out of concern for religious freedom. In the AP poll, for example, 56% said that religious liberty should take precedence over gay rights, the implication being that people anticipate a conflict between the two. They should. At oral argument in Obergefell, Solicitor General Donald Verrilli himself acknowledged the potential for conflict, on questions like tax exemptions for religiously-affiliated institutions that oppose same-sex marriage.

Finally, there is an unmistakable partisan divide. In the AP poll, a large majority of Democrats gave priority to gay rights, while a large majority of Republicans said religious freedom is more important. The extent of the divide is truly startling. “By a 64-32 margin, most Democrats said it’s more important to protect gay rights than religious liberties when the two are in conflict,” the AP reports. “Republicans said the opposite, by 82-17.”

This polarization is worrisome. Up till now, America has been spared the bitterness of religious politics. Unlike some countries in Europe, we have not had clerical and anti-clerical parties. True, particular religious groups have gravitated toward one or another political party. In New England, for example, Irish Catholics were historically Democrats and mainline Protestants Republicans, a conflict memorialized in films like John Ford’s The Last Hurrah.

But we have never had secular and religious parties as such. Both parties saw religion, in general, as a good thing, and religious liberty as a fundamental American value. Tocqueville noticed this and found it refreshing. “In the United States,” he observed, “if a politician attacks a sect, this may not prevent the partisans of that very sect from supporting him; but if he attacks all the sects together, everyone abandons him, and he remains alone.”

Perhaps the political consensus on the value of religion is breaking down. More and more, one of our two major political parties is identifying itself as secular, and the other as religious. That’s not to say that all Democrats are secularists and all Republicans religious believers—of course not. Just ask the folks at Secular Right. And people could value religious freedom but believe other interests outweigh it in particular cases. Still, there seems a clear trend: religious freedom is becoming a partisan issue. That’s a very bad thing for America. You might even say it’s un-American. Let’s hope the trend doesn’t continue.

Bill Kristol Interview with Samuel Alito

This item is getting some deserved attention: Bill Kristol has posted a long-form, uninterrupted interview with Supreme Court Justice Samuel Alito on his “Conversations with Bill Kristol” site. I highly recommend it for anyone who wants to know more about the inner workings of the Court and the intellectual debates that have informed American law for the past generation. Justice Alito’s discussion of his dissent in Obergefell, which you can access here, will particularly interest readers of this site. Alito argues that the case represents a return to an unmoored jurisprudence of unenumerated rights, divorced both from constitutional text and national history and tradition. Worth watching.

Greece and the Price of Europe

Alexis Tsipras, head of the anti-bailout Syriza party, speaks during a financial conference in Athens on Tuesday, Dec. 2, 2014.  Tsipras said that Greece’s battered economy could not recover unless the money owed to other Eurozone country’s was cut significantly. The leader of Greece’s popular left-wing opposition says he will demand a massive debt haircut from bailout lenders if his party comes to power in a possible snap election early next year. (AP Photo/Petros Giannakouris)

(AP Photo/Petros Giannakouris)

Last week was a momentous one for the European project. On Monday, the Greek Parliament passed an austerity package that other Eurozone members, especially Germany, had demanded as a condition for considering Greece’s request for an €86 bailout. Negotiations will now begin. How they will end is anybody’s guess.  No one thinks the austerity package itself will solve the economic crisis Greece faces, and pretty much everyone thinks it will lead to years of misery for the nation. Greece already owes creditors an unsustainable €320 billion. But Germany argues that EU rules prohibit any debt reduction for Greece. Perhaps the parties will find a way to extend Greek payments without calling it a debt reduction. I’m sure the lawyers are working on it.

There is plenty of blame to go around. Yes, Greece misled people about the state of its finances when it joined the euro and has spent beyond its means. And the left-wing Syriza government greatly misjudged the mood in Europe and allowed itself to be completely outmaneuvered. But the banks that made the loans should have known Greece was in no position to pay. Having collected their commissions, they passed the debts to national governments–privatized gains and socialized losses–and walked away. As for those national governments, they should have known a common currency without a common fiscal policy was an unworkable proposition. They ignored this truth in pursuit of the illusion of a common Europe, extending from Scandinavia to the Mediterranean and from the Atlantic to the Black Sea. Greece is now paying the price for that illusion.

All this has been said before. But I’d like to draw attention to a small element of the austerity package Greece’s creditors demanded, one that has largely escaped notice. Under the terms of the package, in order to stimulate commerce, Greece will have to repeal its restrictions on Sunday store openings. From now on, nationwide, Sunday will be a shopping day. (Two years ago, Athens allowed Sunday shopping in 10 tourist areas, a move that led to protests). Presumably, Greeks will respond by buying and selling and generally growing their economy. The increased tax revenues will allow Greece to pay some of its debt. And repeal of anti-liberal Sunday closing laws will allow Greece to create a rational European economy, like Germany’s—though, ironically, German stores are closed Sundays.

We Americans are likely to view this matter as trivial. In America, as Robert Louis Wilken once wrote, the only thing that distinguishes Sunday from other days of the week is that the malls open a little later. Besides, a country can’t be pre-modern forever. Sunday closing laws are hopelessly old-fashioned and illiberal. If Greeks want to stay home on Sundays, they can; but people should be able to shop if they want to.  Resistance probably comes from interest groups that oppose free competition.

But Greece isn’t America or Germany, or at least it didn’t want to be, and the reform is indicative of a larger issue. The Sunday closing laws reflected the fact that Greece had values in addition to the market. Greece has had a tradition of Sunday closings to allow people to spend time with family and attend church. (Sure, lots of people watch football instead, but that’s a different matter. Hypocrisy is the tribute vice pays to virtue). The ban on Sunday trading acknowledged that Greece is an Orthodox Christian country, with its own rhythms and ways of life. No matter. In Europe today, if it’s a choice between religious and cultural traditions, on the one hand, and commerce, on the other, commerce wins.  That’s the economically sound choice.

I don’t suppose there’s anything to be done. Greece is in a terrible situation and needs to find a way out. And I know it’s a small matter, compared to the other hardships Greeks will have to bear. But something important is being lost. To be part of the European project, apparently, a country must do whatever it can to become a secular, consumerist, market-oriented place—Sundays included. Localized cultures that stand in the way of economic rationality must recede. Perhaps that’s the inevitable logic of modernity. But it’s not an image the Christian Democratic founders of Europe like Konrad Adenauer and Robert Schuman would have recognized.